Donovan-Hopka-Ninneman Co. v. Hope Lumber Mfg. Co.

ROSS, Circuit Judge (after stating the facts as above). The defendant. in error (plaintiff below) acquired its alleged rights in and to the property in question under a deed from one Kenneth Ross, who acquired whatever rights he had thereto under a deed to him from an Idaho corporation styled Hope Lumber Company, which com]Kiny acquired its rights in the property, if any, under a deed executed to it on the 25th d'ay of September, 1901, by Frank B. Carter, who under- *647 í(H>k lo convey thereby to the Hope Lumber Company “all the following' described lots, pieces, or parcels of land, situated in the county of Kootenai and state of Idaho and known and described as follows, to wit: All the riparian and water right in front of and belonging to lots (5) five and (6) six, Sec. (1) one, township (56) fifty-six north of range (1) one east, and it is agreed that the average of high-water line for the past (5) five years shall be the division line.” Carter’s rights in and to the property in question, whatever they were, were derived solely by virtue of a deed to him made by the Northern Pacific Railroad Company, which company had theretofore received a patent from the United States conveying to it lots 5 and 6 of the section mentioned under and by virtue of the grant made to it by Congress; one of the boundaries of the lots being Lake Pend d’Oreille, which is a fresh-water navigable lake, situated wholly within the state of Idaho. In his deed to the Hope Lumber Company Carter did not, as will he seen from the description above quoted, convey any portion of lots 5 and 6, but, on the contrary, retained them and subsequently conveyed portions thereof to the predecessors in interest of the plaintiff in error (defendant below), as will subsequently be shown. He undertook to convey to the I lope Lumber Company only “all the riparian and water right in front of and belonging to” lots 5 and 6; the deed reciting that “it is agreed that the average of high-water line for the nast (5) five years shall be the division line.” fióme time after the deed made by Carter to the 1 lope Lumber Company and 011 April 14, 1902, he executed a deed (confirmed by a still later deed) conveying all those portions of the said lots 5 and 6 lying south of the Northern Pacific Railroad Company’s right of way (being those portions thereof bordering on the Lake Pend d'Oreille) to Donovan, I lopka & Niimeman, at the time being a mercantile firm in Hope, Idaho, and being the predecessors in interest of the plaintiff in error, and under which deed the plaintiff in error and its predecessors in interest entered upon the soil and waters in front of lots 5 and 6 and constructed a mill, and afterwards a second mill (the first having been burned), a wharf, and other structures used in the manufacture, sale, and shipment of lumber. There was conflicting evidence given on behalf of the respective parties regarding the average liigh-water line of the lake in front of lots 5 and 6 during the five years immediately preceding the date of the execution of the deed from Carter to the Hope Lumber Company; the highest line being given as 17 feet above and the Invest 14 feet above the line of extreme low water. And there was evidence also given to the effect that the extreme low-water line was fixed by the elevation of the lake, given as 2,051 feet. ()n the trial the court expressed doubt as to whether the plaintiff could maintain ejectment, saying: “The evidence is not clearly in harmony with the description as set, forth in the complaint. There is an express allegation of the conveyance of the soil, and I overruled the demurrer on that ground. The construction of the deed is not free from grave difficulty, hut I have concluded to take the view that it conveys all the interest which the grantor had, in the boundary lines of the description. Taking the entire deed together, my conclusion is that *648 such was the intention of the parties fairly to be gathered from the deed; but the conclusion is not free from difficulty.” The court finally gave to the jury these two instructions: “Gentlemen of the jury, in the view which I have taken of the law of this case, from the undisputed testimony, it becomes my duty to say to you that the plaintiff is entitled to recover upon the first cause of action. A form of verdict has been prepared, which it will be your duty to find and the duty of your foreman to sign: ‘We, the jury impaneled and sworn to try the above-entitled cause, find for the plaintiff on all the material issues on the first cause of action, and find that the “average of high-water line” referred to in the deed offered in evidence by plaintiff, and referred to and alleged in the complaint as a part of the description of the premises in controversy, as follows, to-wit, at an elevation of 2,062 feet above sea level.’ So that so far as this first phase of the case is concerned, I am assuming the responsibility myself and will relieve you from any difficulty. It will be your duty to return this verdict. “Now, as to the second cause of action, the plaintiff asks for damages for being deprived of the use of the property in controversy during the period elapsing from the time it was excluded from the use thereof (I think it is claimed by the plaintiff that it was some time in February, 1909, but the date is for you to determine) from the date when it was excluded from the use of this property, if it was excluded (and that is for you to find), up until the date of this suit, which is June 15, 1909. Your verdict upon that cause of action cannot exceed $5,000, which, as I understand, is the highest esti5 mate any witness placed upon the damages, and cannot be less than $1. So that your verdict must be in favor of the plaintiff for at least $1, and cannot exceed $5,000.” As has been stated, the jury returned a verdict for the plaintiff as directed and fixed its damage at the nominal sum of $1. [1] By its patent the United States did not undertake to convey anything below ordinary high-water mark. Barney v. Keokuk, 94 U. S. 324, 338 , 24 L. Ed. 224 ; Packer v. Bird, 137 U. S. 661 , 11 Sup. Ct. 210, 34 L. Ed. 819 . The incidental riparian rights to the waters in front of those lots and to the use of the soil under them for certain purposes, the grantee of such title held and enjoyed as owner of the upland only. The law in respect to the rights that accrue to the owner of lands in this country bordering on navigable waters beyond the reach of the tides, whether of rivers or lakes, .is well settled. Such rights are governed by the laws of the several states, subject to the paramount public right of navigation. Weems Steamboat Co. v. People’s Company, 214 U. S. 345 , 29 Sup. Ct. 661, 53 L. Ed. 1024 , 16 Ann. Cas. 1222; Shively v. Bowlby, 152 U. S. 1 , 14 Sup. Ct. 548, 38 L. Ed. 331 ; Yates v. Milwaukee, 10 Wall. 497 , 19 L. Ed. 984 ; and the numerous cases cited in the opinions in those cases. “The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the states for their grants; but whatever incidents or rights attach to the ownership of property conveyed by the government will be determined by the states subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee. As an incident of such ownership the right of the riparian owner, where the waters are above the influence of the tides, will be limited according to the law of the state, either to low or high water mark, or will extend to the middle of the stream.” Packer v. Bird, 137 U. S. 661 -669, 11 Sup. Ct. 210, 212, 34 L. Ed. 819 . *649 [2] The law of the state of Idaho, as established by the Supreme Court of that state, is that the riparian owner upon the streams and lakes of Idaho (all of which are unaffected by the tides), whether navigable or nonnavigable, takes title to the thread of the stream or lake, as the case may be, subject to the public right of navigation. Johnson v. Johnson, 14 Idaho, 561 , 95 Pac. 499 , 24 L. R. A. (N. S.) 1240; Lattig v. Scott, 17 Idaho, 506 , 107 Pac. 47 . It necessarily results, therefore, that it must be here held that Carter got, as an incident of the conveyance of lots 5 and 6 by the Northern Pacific Railroad Company to him under its patent from the government, title to the wafers in front of those lots and to the soil covered by them to the thread of the lake, subject to the public right of navigation. But such title he received and held only as riparian owner of lots 5 and 6 and as a mere incident of the title to those lots conveyed by the United States. [3] The real questions in the case, therefore, are: First, whether those incidental and appurtenant rights were separable from the land to which they were thus attached, and, if so, whether they passed by the deed executed by Carter to the Hope Cumber Company; in which event the further questions of estoppel and the right of the plaintiff to maintain the action of ejectment. In support of their contention that the incidental and appurtenant rights referred to were inseparable from the riparian land, the counsel for the plaintiffs in error cite, among other cases, Illinois Central Railroad Co. v. Illinois, 146 U. S. 387 -445, 13 Sup. Ct. 110, 36 L. Ed. 1018 , and Potomac Steamboat Co. v. Upper Potomac S. Co., 109 U. S. 672 , 3 Sup. Ct. 445, 4 Sup. Ct. 15, 27 L. Ed. 1070 . In the case of Illinois Central Railroad Co. v. Illinois, 146 U. S. 387 -445, 13 Sup. Ct. 110, 115 ( 36 L. Ed. 1018 ), the Supreme Court said: "The construction of a pier or the extension of any land into navigable waters for a railroad or other purposes, by one not the owner of lands on the shore, does not give the builder of such pier or extension, whether an individual or corporation, any riparian rights. Those rights are incident to riparian ownership. They exist with such ownership and pass with the transfer of the laud. And the land must not only be contiguous to the water, but in contact with it. Proximity without contact is insufficient. The riparian right attaches to land on the border of navigable water without any declaration to that effect from the former owner, and its designation in a conveyance by Mm would be surplusage. See Gould on Waters, § 148, and authorities there cited." “The riparian proprietor is entitled, among oilier rights, as held in Yates v. Milwaukee, 10 Wall. 497, 504 [ 19 L. Ed. 984 ], to access to the navigable part of ihe water on the front ol" which lies his land, and for that purpose to make a landing, wharf, or pier for his own use or for the use of the public, subject to such general rules and regulations as the Legislature may prescribe for the protection of the rights of the public.” The case of Potomac Steamboat Co. v. Upper Potomac S. Co., 109 U. S. 672 , 3 Sup. Ct. 445, 4 Sup. Ct. 15, 27 L. Ed. 1070 , was a bill in equity to restrain the defendants below, who were the appellees in the Supreme Court, from constructing piers and docks on the Potomac river, at the city of Washington. The plaintiffs, being in possession of a tract of land bounded by Water street, which was on the margin of *650 the river, claimed that the riparian rights on the side of the street opposite to their tract attached to it. The defendants denied the ¿plaintiffs’ title to such riparian rights, and justified their own acts under a license from the commissioners of the District of Columbia, who claimed title to the river front and riparian rights through deeds vesting the fee simple of Water street, in the city of Washington, in the United States. In the course of its opinion, the court said: “The decisive circumstance in the present case is that the United States became the riparian proprietor, and succeeded to ail the riparian rights of Notley Young, by becoming the owner in fee simple absolute of the strip of land that adjoined the river, and intervened between it and what remained to the original proprietor, Notley Young, after that conveyance; and the successors to his title had no other or greater rights in Water street, or the land on which it was laid out and eventually made, than any other individual members of the public. While it remained a street, it was subject to their use as a highway merely, over which to pass and repass, and without the consent of the United States as proprietor' was subject to no private use whatever. The right of wharfage remained appurtenant to it, because, as land adjacent to the river, that right was annexed to it by law, and could be exercised on it by the proprietor; but. was severed, by the severance of the title, from the remainder of the original tract, to the whole of which it had formerly pertained.” These decisions fall far short of hoiding that such riparian rights cannot be severed from the riparian land and conveyed! by its owner to third parties while retaining the land to which they were theretofore appurtenant. The counsel for the plaintiffs in error also cite in support of their contention the case of Lake Superior Land Co. v. Emerson et al., 38 Minn. 406 , 38 N. W. 200 , 8 Am. St. Rep. 679 , in which both parties claimed under the same original grantor, who owned a tract of land in Minnesota bordering on Lake Superior, which, under the law of that state, extended only to low-wate'r mark; the soil under the water below that mark being the property of the state. The court in that case did distinctly hold that such riparian and appurtenant rights were not separable from the riparian land out of which they grew. “Riparian rights incident or appurtenant to no land cannot exist,” said the court. The first decision of the same court in the subsequent case of Hanford et al. v. St. Paul & D. R. Co., 43 Minn. 104 , 42 N. W. 596 , 7 L. R. A. 722, was to the same effect; hut upon full reconsideration of the last-mentioned case, reported in 44 N. W. 1144 , the court overruled its former decisions, and after reviewing a large number of cases said, among other things: “We have tbps considered.: That the riparian proprietor has the exclusive right — absolute, as respects every one but the state, and limited only by the public interests of the state for purposes connected with navigation — to improve, reclaim, and occupy the submerged land, out to the point of navigability, for any private purpose, as he might do if it 'were his separate estate; that this right, even though it may never have been exercised, is recognized and protected by the law as property, of which he cannot be deprived even by the state without just compensation. That the enjoyment of the right — the use of the premises — need not be associated with the use of the upland. That it is for the interest of the state that such waste lands be improved and rendered profitable, while the state is not concerned as to whether the owner of the adjacent upland, or some person to whom he may release his right, make the improvement and enjoy the private benefit. That the rights of other per *651 sons are not involved in the question. That when the land has been reclaimed it may be conveyed, according to most of the authorities, apart from the original upland. And that, according to other authorities, the riparian right may be transferred to and enjoyed by the owner of the next adjacent riparian estate. Ifroni these considerations, as well as from the authorities cited bearing directly upon the question, we think that the quality of alienability should be deemed to belong to this kind of property, as it does to property in general. See opinion of Bramwell, B., in Nuttall v. Bracewell, R. R. 2 Exch. 1, 11. The only reason opposed to this is the technical one that the right grows out of, and, until severed, is incident to, a riparian estate. We have come to feel that this is unsatisfactory, as a reason why such property should lie deemed inseparable from the parent estate, and incapable of a separate existence. If tile right in question were created out of, or enjoyed at the expense of, some other estate or property, and were measured and limited by the needs or use peculiar to the riparian estate to which it is annexed, there would be ground for others to urge that the right could not be changed or transferred so as to enlarge the scope of a grant or contract, or so as to prejudice the party complaining. But no such conditions exist. The rights of no one are affected by allowing the riparian owner to convey away this part of his property, as ho may his other property. It is only an abstract question whether the right originating in custom, and having originally attached as an incident to his riparian lands, may now be sold and conveyed, and be enjoyed by the purchaser. It is for the interest of the riparian owner that he be allowed to dispose of or use his private property at his own discretion. It is for the interest of the public that such property be subject to purchase and iise, where the owner may be incapable of improving it. No one is interested in opposing such unrestricted alienability and use. Although we have become convinced that the lief ter reason is opposed to our former decision upon this point in Land Co. v. Emerson, 38 Minn. 406 , 38 N. W. 200 , 8 Am. St. Rep. 679 . we should have deemed it better that a rule of property, although so recently declared, should not be disturbed, were it not that it is supposed that the result of that, decision, If adhered to, would be very seriously prejudicial to the tenure of a large amount of very valuable property, which for a long time has been deemed and treated as alienable and enjoyable apart from the riparian lands, and which, according to our present opinion, was rightfully so treated prior to our decision in the Emerson Case." While there is undoubtedly some conflict in the authorities upon the subject, the decided weight of authority is to the effect that the incidental and riparian rights of the riparian proprietor referred to may he severed from the riparian land by grant, by condemnation, by relinquishment, or by prescription. See the large number of cases cited in Farnam on Water Rights, vol. 3, § 724 et seq., including the cases of Gould v. Stafford, 91 Cal. 146 , 27 Pac. 543 , McCann v. Oregon R. & N. Co., 13 Or. 455 , 11 Pac. 236 , Parker v. West Coast Packing Co., 17 Or. 510 , 21 Pac. 822 , 5 L. R. A. 61, and Welch v. Oregon R. & N. Co., 34 Or. 447 , 56 Pac. 417 . [4-6] In respect to the question of estoppel, we are of the opinion that the court below was right in its conclusion that the plaintiff was not estopped from the assertion of its rights, for the reason that the record shows that each of the parties to the action had not only constructive but actual notice of the claims of the other, and actual knowledge of the dispute as to what the law governing the case really was and took 'the chance of the result of the controversy. And since by virtue of the law of the state of Idaho, as has'been above shown, the common grantor of the respective parties to the action took title to the soil in front of lots 5 and 6 to the middle of the lake, subject to the public right of navigation, the deed from Carter to the plaintiff’s *652 predecessor in interest passed his title to such soil below the high-water mark therein designated, for which, together with the physical structures erected thereon by the defendants, the action of ejectment is properly maintainable. It results that the judgment must be and is affirmed.